Children play at polygamist community Bountiful. Several groups with intervener status in the hearing on the constitutionality of anti-polygamy laws are concerned about the rights of children.Ian Smith
/ Vancouver Sun

A grade 2 class does reading class at Mormon Hill School at Bountiful, near Creston, B.C. in 2005. The genesis of the B.C. Supreme Court case on polygamy is allegations of child brides and exploitation in Bountiful.Ian Smith
/ Vancouver Sun files

George Macintosh, court appointed lawyer for pro-polygamist groups comments on the BC Supreme Court decision that Polygamy remains a crime in Canada, at BC Supreme court ruled that the law violates the religious freedom of fundamentalist Mormons, but the harm against women and children outweighs that concern.Nick Procaylo
/ PNG

Craig Jones, lawyer for the Attorney General of BC, comments on the BC Supreme Court decision on polygamy at BC Supreme Court in Vancouver, BC October 23, 2011.Nick Procaylo
/ PNG

Winston Blackmore is one of two men charged with polygamy in 2009 whose stay of proceedings in that case led to the question of the constitutionality of the law being referred to the courts. Wednesday the polygamy law was ruled constitutional.Glenn Baglo
/ Vancouver Sun Files

Two young girls gather flowers near a known polygamist community in Bountiful, B.C.Glenn Baglo
/ Vancouver Sun

Winston Blackmore is one of two men charged with polygamy in 2009 whose stay of proceedings in that case led to the question of the constitutionality of the law being referred to the courts. Wednesday the law was ruled constitutional.Ian Smith, Vancouver Sun Files
/ Vancouver Sun

In a 335-page ruling, the judge said that while the law “minimally impairs” the constitutional right of religious freedom, it is justified by the harms polygamy causes to women, children and society.

“Women in polygamous relationships are at an elevated risk of physical and psychological harm,” Bauman said in his ruling. “They face higher rates of domestic violence and abuse, including sexual abuse.”

He added: “Early marriage for girls is common, frequently to significantly older men. The resultant early sexual activity, pregnancies and childbirth have negative implications for girls, and also significantly limit their socio-economic development.”

As such, Bauman found, minors in polygamous relationships should be exempt from prosecution under the law. He suggested the legislation be “read down” to exclude children between 12 and 17.

The decision was handed down after a 42-day constitutional reference case held this spring, during which the judge heard arguments for and against Section 293 of the Criminal Code. The question of the law’s constitutionality stemmed from a stay of proceedings in the 2009 polygamy prosecutions of Winston Blackmore and James Oler of the Bountiful community in B.C.

Attorney-General Shirley Bond welcomed the ruling, saying the courts sent a clear message in support of the government’s position.

“This is a landmark ruling,” Bond said. “It is a situation where Justice Bauman basically embraced the government’s entire argument about the profound depth of harm that’s created from polygamous relationships.”

The government, she added, will now take time to consider its next steps.

Leonard Krog, New Democratic Party critic for the attorney-general, said he believes the court made the right decision, but added the province should expedite the appeal process so that the prosecution of polygamists can go ahead.

“The fact is in the United States they have had successful prosecutions [of polygamists]; British Columbians are wondering why it hasn’t happened here,” he said.

“At this point, I think we need to get it [the reference case] to the Supreme Court of Canada,” Krog added.

The judge appointed senior Vancouver lawyer George Macintosh as an amicus curiae — a Latin term meaning friend of the court — to argue in favour of striking down the law.

Macintosh said Wednesday that he has 30 days to decide whether to appeal.

Any appeal would have to involve the constitutional question rather than findings of fact, because the judge strongly found there are harms inherent in polygamy, he said.

Macintosh said if all the parties consented, an appeal could be sought directly with the Supreme Court of Canada.

“[The ruling is] everything we could have hoped for,” said Brian Samuels, a lawyer representing the group Stop Polygamy in Canada, which was granted intervenor status in the case. “It’s a very strong decision.”

Samuels wasn’t surprised by the judge’s ruling that children under 18 should not be charged with a polygamy offence.

“In fact, a great deal of the evidence in this case was that the children involved in these polygamous relationships are coerced into them,” he said.

John Ince of the Canadian Polyamory Advocacy Association, also an intervenor in the case, said he was pleased with the judge’s finding that a polyamorous relationship involving consenting adults should not be considered a criminal act if the adults are not married.

The polygamy law was introduced by Parliament in 1890.

During the reference case, the governments of Canada and B.C. presented evidence of polygamy’s harms, arguing that because the practice puts women and children at risk, any loss of rights is justified.

The court heard evidence from people who have had both positive and negative experiences with polygamous relationships.

The reference questions were put before the court by the provincial attorney-general after a stay of proceedings in the prosecutions of Winston Blackmore and James Oler, who were charged in 2009 with practising polygamy at Bountiful.

Bountiful residents follow the Fundamentalist Church of Jesus Christ of Latter-day Saints, or FLDS. Polygamy is practised as a tenet of the faith but the mainstream Mormon church renounced multiple marriages more than 100 years ago.

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